A truster directed that his widow should have the liferent of the residue of his estate so long as she did not marry again, and that on her death or second marriage the residue should be divided among his sons, the issue of any predeceasing son taking the parent's share. He gave power to the trustees to convey to any of the sons their shares or part of their shares during the widow's survivance on security being given for her receiving the income of the share so conveyed. Held that the vesting of the sons' shares was not postponed till the widow's death, but that they vested a morte testatoris and were therefore carried by the settlements of sons who predeceased the widow. William Ross senior, of Greenside, in the county of Fife, died on 15th January 1859. He was survived by his widow, three sons, and three daughters. He left a trust-disposition and settlement, dated 22d February 1853, and codicil dated 28th December 1858. By the second purpose of the trustsettlement he provided for his widow, in addition to the liferent of his household furniture, an annuity of £150. By the third purpose he divided the residue of his estate among his children in such proportions as he should appoint. By the codicil, which was executed within three weeks of his death, he first made an alteration in the trustees; second, he revoked the third purpose of his trust-disposition and settlement disposing of the residue of his estate, and directed his trustees to settle a sum of £3000 on each of his daughters in liferent and their children in fee, and to pay to each of them a certain further sum. By the sixth purpose he provided as follows-" Sixth, with regard to the free residue of my estate, I hereby direct and appoint my said trustees to make payment to the said Mrs Jean Ross, my wife, if she shall survive me, of the annual income during all the days of her lifetime while she remains my widow, and that at the same terms as set forth in the second purpose of the trust created by me in my said deed of settlement; and declaring that in case the said Mrs Jean Ross shall again marry, then the said liferent of the residue of my estate shall from the date of such marriage cease and for ever determine, and at the term of Whitsunday or Martinmas after the death or marriage of the said Mrs Jean Ross, if she shall survive me, and in the event of her predecease, at the first term of Whitsunday or Martinmas after my death, I hereby appoint and direct my said trustees to divide equally among my sons the said free residue and remainder of my said estate, the children of such as may have predeceased the term of payment taking their parent's share; declaring always that in the event of my wife surviving me, it shall be competent to and in the power of my said trustees, at any time after the first term of Whitsunday or Martinmas that shall happen after my death, to pay or convey to each or any of my said sons their shares, or a part of their shares, of the free residue of my said estate, but that upon due security only for the regular payment to the said Mrs Jean Ross, during all the days of her lifetime while she remains my widow, of the annual income of each share, or part of a share, so paid or conveyed; and my said trustees before denuding of the trust shall be bound not only to secure the annuities provided to the said Mrs Jean Ross, and to my said brother-in-law, but also to securely settle, as before directed, the provisions conceived in favour of each of my daughters. and of the children of their bodies; and likewise to secure in the most satisfactory manner that the annual income of the free residue of my said estate shall be regularly paid to the said Mrs Jean Ross during all the days of her lifetime while she remains my widow." The codicil also provided to the brother-in-law of Mr Ross an annuity of £20 and the liferent of a house. Mr Ross left heritable and moveable estate amounting to £54,000. The sums provided to his daughters and their families were secured as he directed. After the decease of Mr Ross, his widow, on 16th May 1859, granted a renunciation and discharge, by which, on the narrative of her provision given by the trust - disposition and settlement as above narrated, and that shortly before his death he executed the codicil, in terms of which she might claim provisions much larger than by his trust - disposition were conceived in her favour, and greater than she believed he intended her to enjoy, and that she was perfectly satisfied with the provision in her favour before narrated of an annuity of £150, and the liferent use of the whole furniture, as given her by the settlement, and that the trustees had secured her annuity by making over to her in liferent debentures of the Edinburgh, Perth, and Dundee Railway Com. pany, to the extent of £5000 sterling, in security of her said annuity of £150 sterling, she renounced all right competent to her under and in virtue of the said codicil, and discharged the trustees and the trust-estate of all claim or demand against the trustees or against the estate of her late husband, either under the said codicil or in any other way. The trustees thereafter proceeded to realise and pay over to the testator's three sons, who were his residuary legatees, the bulk of the estate, saving that portion only which was set aside to meet the annuity to Mrs Ross, and which consisted of preference stock of the North British and Caledonian Railways. Mrs Ross died in 1883, and these stocks fell to be realised and paid in terms of the settlement of her husband. Two of the testator's sons, James Ross and William Ross junior, had predeceased Tr. v. Ross & 17, 1884 Mrs Ross. William Ross junior was succeeded by a daughter, and James Ross by three sons and four daughters. Both William Ross junior and James Ross left a settlement. A question arose whether proportional shares of the funds had vested in James Ross and William Ross junior, and were therefore carried by their mortis causa settlements, or whether vesting was suspended until the death of Mrs Ross, so that the children of James Ross and William Ross junior took these shares in their own right. This Special Case was accordingly presented. The surviving trustee of William Ross senior was first party. The trustees of James Ross were second parties. The children of James Ross were third parties. The trustees of William Ross junior were fourth parties. The only child of William Ross junior was fifth party. The questions were-"(1) Did the residue of the trust means and estate of Mr William Ross senior, and in particular, did that part thereof which his trustees held in security of Mrs Ross' annuity, vest in his three sons at his death, or was the vesting suspended until the death of Mrs Ross? (2) Do the shares of the part of the said residue held for Mrs Ross' annuity, which would have fallen to James Ross and William Ross junior had they survived her, now fall to be paid to the second and fourth parties hereto as trustees under their respective mortis causa settlements, or to the third and fifth parties hereto in their own right?" Argued for the children of James Ross and William Ross junior (third and fifth parties)— The term of payment in this case was the time of the widow's death, and those who were entitled to succeed were those who happened to be alive at that date. There was no gift to the children until they had survived the term of payment, and no vesting until the term of payment, e., the death of the liferentrix arrived. Authorities-Stewart's Trustees v. Stewart, July 17, 1851, 13 D. 1386; Howat's Trustees v. Howat, Dec. 17, 1869, 8 Macph. 327; Ross v. Dunlop, May 31, 1878, 5 R. 833; Dickson v, Corsar, Jan. 20, 1880, 17 Scot. Law Rep. 311; Bryson's Trustees v. Clark, Nov. 26, 1880, 8 R. 142; M'Alpine's Trustees, March 20, 1883, 10 R. 837; M'Laren on Wills, ii. 12. Argued for the trustees of James Ross and William Ross junior (second and fourth parties) -The ordinary rule of vesting a morte testatoris applied; there was no destination-over; the term of vesting was the death of the testator; there was no intention on the testator's part to favour in particular any one or any one class of his sons. Authorities Muir's Trustees, October 23, 1869, 8 Macph. 53; Elliot, June 21, 1873, 11 Macph. 735; Henderson's Trustees, January 8, 1876, 3 R. 320; Campbell, Dec. 21, 1866, 5 Macph. 206; Leighton v. Leighton, March 2, 1867, 5 Macph. 561; Jackson v. M‘Millan, March 18, 1876, 3 R. 627; Scott v. Scott's Executors, Jan. 27, 1877, 4 R. 384; Wilson's Trustees v. Quick, Feb. 28, 1878, 5 R. 309; Popham's Trustees v. Parker's Executors, May 24, 1883, 10 R. 888. consists of a trust-disposition and settlement, and codicil, the former of which contained a provision in favour of Mrs Ross of £150 in name of an annuity. It appears, however, that some time after this deed was executed the testator, considering that he had not made a proper provision for his wife, proceeded to the opposite extreme, for by the terms of the codicil to which I have just referred he gives her the liferent of the income of the whole free residue of his estate. Before, however, the amount of this residue could be ascertained, the provisions in favour of the testator's daughters had to be settled. That, however, has been arranged, and it is not a matter which requires to be noticed in dealing with the question now before us. Among the other provisions of the trust-deed the only one which I shall notice is an annuity of £20 in favour of the truster's brother-in-law, Richard Greenshields-a provision to provide for which it was clearly not necessary to keep up the trust, and therefore the object of continuing this trust was to secure the widow in her annuity. The fee of the residue was directed by the truster to be divided equally among his three sons. Now, the clause of residue, upon the construction of which this question depends, provides that Mrs Ross, if she survives her husband, is to have the interest of the whole free residue of his estate during her lifetime while she remains his widow, but in the event of her again marrying, then her rights to the revenue of the residue were to cease, and the fee of the residue was to go to the testator's sons. There are thus three possible periods of payment of this fee of residue present to the mind of the testator. First, the date of his own death; second, Mrs Ross's second marriage; and third, the date of Mrs Ross's death. These are all present to the mind of the testator, and he gives expression to these possible terms of payment in the first part of this residuary clause, the latter portion of which provides for the disposal of the fee of the residue, and is in these terms-" At the first term of Whitsunday or Martinmas after the death or marriage of the said heir Jean Ross, if she shall survive me, and in the event of her predecease, at the first term of Whitsunday or Martinmas after my death, I hereby appoint and direct my said trustees to divide equally among my sons the free residue and remainder of my said estate, the children of such as may have predeceased the term of payment taking their parent's share." If the deed had ended here, it would, I think, have been a very difficult matter to have made out a case of vesting a morte testatoris, but there are certain clauses which immediately follow what I have just read which have a most important bearing on the question which we have now to determine. The deed goes on to provide “Declaring always that in the event of my wife surviving me it shall be competent to and in the power of my said trustees, at any time after the first term of Whitsunday or Martinmas that shall happen after my death, to pay or convey to each or any of my said sons their shares, or a part of their shares, of the free residue of my said estate, but that upon due security only for the regular payment to the said Mrs Jean Ross during all the days of her lifetime while she remains my widow of the annual income of each share, or part of a share, so paid or conveyed." Now, here another possible term of payment is added to these which I have already referred to, for the trustees are empowered to terminate the trust and pay over the fee to the truster's sons provided they or any one of them upon their part offer a sufficient security for the widow's annuity. I speak of one of the sons coming forward and so proposing, because if any one of them did make such a proposal and found security, it would have been very difficult for the trustees to resist such a demand, all the more as the testator has a favour for such a proceeding, or he would not have given his trustees the authority he has done in this part of his codicil. But there is yet another clause to be taken into consideration, and it is not by any means a repetition of those which have gone before it. It contemplates a different event, and is in these terms-“ And my said trustees, before denuding of the trust, shall be bound not only to secure the annuities provided to the said Mrs Jean Ross, and to my said brother-in-law, but also to securely settle, as before directed, the provisions conceived in favour of each of my daughters, and of the children of their bodies; and likewise to secure, in the most satisfactory manner, that the annual income of the free residue of my said estate shall be regularly paid to the said Mrs Jean Ross during all the days of her lifetime, while she remains my widow." The condition which the truster here makes comes to this, that before the trustees denude, the whole annual income of the residue of his estate is to be carefully secured to his widow, and paid over to her while she remains his widow. The result of all this is that in addition to the three periods of payment provided by the first part of the deed two others are introduced. No doubt these two latter periods are of uncertain occurrence, and only emerge when the truster's sons find security for the widow's annuity and the trustees are satisfied with the sufficiency of the security offered. But the making of such an arrangement is clearly in the power of the trustees and the sons, and accordingly the decease of the widow is not a necessary condition of payment, and her death therefore does not necessarily fix the term of payment. Now, what has occurred in the present case is perfectly clear. The widow, quite satisfied with her husband's provision contained in the trustdeed, intimated that she did not desire the interest of the residue of the estate, and gave effect to this by her deed of renunciation and discharge of the testamentary trustees. A period of payment had thus arrived, and accordingly all the residue was set free except what was required to meet the widow's annuity of £150. The surplus was accordingly paid over to the beneficiaries, and the only obstacle which stood in the way of a complete division of the residue was the sum which required to be set aside to meet the widow's annuity. Now, as I have already pointed out, this annuity was by the provisions of the codicil no serious obstacle to the division of the whole free residue, because all that the sons had to do was to offer sufficient security for this annuity, and then no questions would arise. There was not therefore in the contemplation of the truster anything like a postponement of vesting. The Ti. v. Ross & Dec. 17, 1854 presumption is in such cases for vesting a morte testatoris, and the mere fact of a liferent standing in the way will not prevent the application of this rule. That is all the more the case here, as it is quite clear that it was the truster's intention that vesting was not to be postponed until the execution of the purpose of the trust. There was accordingly nothing in the present case to prevent vesting taking place a morte testatoris. LORD MURE concurred. LORD SHAND-I am clearly of the same opinion. Keeping in mind the circumstance that the truster makes a provision for his daughters, his settlement comes to this—a liferent to the widow and the fee to his sons. In such a case the law holds vesting to take place a morte testatoris, unless the provision is very clearly expressed that vesting is to be postponed. The purpose of postponing payment of a portion of the fee of any estate is usually to secure liferents or to pay annuities. That being the general principle, does the special clause in this deed postpone vesting? The question turns in the first place upon the provisions of the clause, which is in these terms -[His Lordship here read the passage quoted above in the opinion of the Lord President]. It is to be observed that the first part of this clause is unlike in its terms those which we find when there is intended to be a destination-over; in them the language is more precise, and we find also the words "whom failing," or some such equivalent expression. But the material provisions of this clause which are to be found in the latter part of it, make it clear that the trustees might have denuded at once if the sons had only found satisfactory security for the widow's annuity. Taking the deed, then, as a whole, there is not, I think, anything to prevent vesting a morte testatoris, and that I think was the intention of the testator. LORD DEAS was absent. The Court pronounced the following interlocutor: :64 'Find and declare that the residue of the trust, means, and estate of the late William Ross senior, including the part thereof which his trustees held in security of Mrs Ross' annuity, vested in his three sons at his death, and that vesting was not suspended until the death of Mrs Ross, the testator's widow: Find it unnecessary to answer the second question." Counsel for First, Second, and Fourth Parties (Trustees) Sol.-Gen. Asher, Q. C.-Jameson. Agents-Millar, Robson, & Innes, S.S. C. Counsel for Third and Fifth Parties (Children of William Ross junior and James Ross— Trayner-Dickson. Agents-Dove & Lockhart. S.S.C. Thursday, December 18. SECOND DIVISION. M'ADAM V. AGNEW. After a trustee had adjudicated on the claims lodged by creditors, and had paid dividends in fulfilment of those deliverances, a creditor brought, under the 86th section of the Bankruptcy Act 1856, a petition to have him ordained to account for his intromissions, alleging that he had, without sufficient claims and vouchers being produced, admitted claims and made payments. Held that the petition was incompetent, and that the petitioner should have appealed against the trustee's deliverance at the proper time, and in the manner provided by the Act. Observations on the function of sec. 86 of the Act. The 86th section of the Bankruptcy (Scotland) Act 1856 enacts that . . . "the trustee and commissioners shall be amenable to the Lord Ordinary and to the Sheriff, although resident beyond the territory of the Sheriff, at the instance of any party interested, to account for their intromissions and management, by petition served on them." James M'Adam, residing at Stranraer, a creditor on the sequestrated estate of John Martin, farmer, Smithyhill, Wigtownshire, presented this petition in the Sheriff Court at Stranraer, to have William Agnew, the trustee in the sequestration, ordained to account for his intromissions as trustee foresaid, and to pay to the petitioner the sum of £50, or such other sum as shall be found to be due to him in said accounting, all in terms of section 86 of the Bankruptcy (Scotland) Act 1856." He stated, and it was admitted, that he was a creditor on the estate for £88. He also stated that the trustee had by his actings and management caused great loss to the estate, in particular by admitting certain claims to be ranked without any sufficient vouchers having been produced. He also stated that persons had been ranked and had received payments without production of affidavit and claims having been made. He pleaded-"(1) In terms of sec. 86 of the Bankruptcy (Scotland) Act 1856, any person interested is entitled to ask an accounting from the defender, and the pursuer being a creditor in said sequestration, and having suffered loss as condescended on to the extent sued for, decree should be granted, with expenses, as craved. (2) The defender having made payments to persons who had not lodged affidavits and claims in terms of the statutes on the said sequestrated estates, and the pursuer as a creditor therein having suffered in consequence, decree should be granted, with expenses, as craved." The defender pleaded—“ (4) The 86th section of the Bankruptcy (Scotland) Act 1856 only gives creditors power to call on the trustee to account for his intromissions and management, but not to call in question or interfere with the trustee's deliverances on claims or actings." The Sheriff-Substitute (MAXWELL) found, inter alia, that the defender had failed to account for his management of the sequestrated estates, in respect that he had admitted certain claims (specified in the interlocutor) without sufficient vouchers having been produced, or that they were otherwise established according to law in terms of the 50th section of the Bankruptcy (Scotland) Act 1856; that the total amount of these claims was £333, 5s. 4d., and the dividend £129, 7s. 2d.; and further that a certain illegal payment had been made to the agent in the sequestration; that on an accounting the petitioner was entitled to payment of £2, 14s. 7d., that being the sum falling to him, as a creditor for £88, out of what the defender had improperly paid away. He "Note. This is a petition under the 86th section of the Bankruptcy Statute. The pursuer is a creditor on the sequestrated estates of John Martin, farmer, Smithyhill and Lagganmore, in the county of Wigtown. The defender is trustee on said estates. The date of his appointment was 10th May 1878. A final dividend was paid to the creditors on 11th September 1883. The previous dividend had been paid on 11th March 1879. The cause of the delay appears to have been owing to several actions having been raised against the bankrupt, and to his succession to certain property after the payment of the first dividend. The pursuer takes objection to several proceedings on the part of the trustee, whereby he alleges the estates have suffered loss. appears to have first raised these objections at a meeting of the creditors on August 29th 1882. At this meeting a motion was moved, but not carried, that the trustee be removed, and a motion was also made for the appointment of a committee to examine into the sequestration accounts and affairs, but the minute does not bear that the motion was put to the meeting. No appeal was taken by the pursuer or other creditor under the 169th section against the resolutions come to at this meeting, but it appears that soon after communications passed between the pursuer and the trustee regarding the management of the sequestrated estates. pursuer was not satisfied with the explanations given, and on the 18th of January 1883 he reported the actings of the trustee to the Accountant in Bankruptcy. The Accountant, after receiving answers from the trustee, issued notes on the complaint, and finally a deliverance, of date 22d May 1883, his finding being that it was not a case to report to the Court under the 159th section of the Bankruptcy Statute. The pursuer thereafter brought this petition under the 86th section, in which he raises almost the same points as were brought before the Accountant. The "The first objection taken to the management of the trustee is, that he admitted the claims of certain creditors to a ranking without sufficient vouchers. It is contended for the trustee that no appeal having been taken against his decision under the 127th section, the pursuer is now foreclosed from raising the question. This plea does not appear to me well-founded, for although by the 127th section a right of appeal is given not only to each creditor against the decision of the trustee in his own case, but also against the trustee's decision admitting the claims of other creditors (Morris, 21st January 1843), yet it seems to me that this is an act of management falling within the terms of the 86th section, and for which, therefore, the trustee is liable to account at any time before his discharge. This seems to follow from the Lord Justice-Clerk's judgment in Henderson v. M'Lintock, November 22d 1882, in which he says-The clause (i.e., the 86th) is a useful one in enabling persons having an interest to come before the Court and call on the trustee to account for any proceedings which may have taken place in the course of the sequestration, though no creditor appears to challenge under the direct provisions of the statute.' In this case certain acts of omission are alleged, and I think it is for the trustee to show that his management was regular and in accordance with the statute. I have, however, had some hesitation in holding the trustee personally liable for the dividends he has paid without sufficient vouchers or proof, because he avers that in each case he was satisfied the debt claimed was due. I think, however, that something more than this is required on the part of the trustee. It is for the creditor to produce accounts and other vouchers, or to establish his debt in some other way, and unless he does so, the trustee must reject his claim. If I were to hold the trustee's answer a good one in the case of these claims, it would, I think, make an accounting under the 86th section of no value whatever." The Sheriff-Substitute then discussed in detail the various objections taken. The defender appealed, and in support of his contention that the application was an incompetent one under the 86th section of the statute, relied on the case of Henderson v. M'Lintock (Henderson's Trustee), Nov. 22, 1882, 10 R. 188. It was not intended by section 86 to provide an alternative for the course provided under section 127, which gives an appeal from deliverances on claims. The petitioner replied-The application was one strictly within the terms of the section. It was an act of management which any party having a legitimate interest might bring under the cognisance of the Court-Burt v. Bell, Feb. 3, 1863, 1 Macph. 382, opinion of Lord Cowan, p. 385. The case of Henderson v. M Lintock (Henderson's Trustee) was a judgment entirely on relevancy, and in no way on the competency of that application under the section of the Act. At advising LORD YOUNG-I have read the Sheriff-Substitute's very careful and able judgment in this case, but without being able, I confess, to concur in his views. I say nothing about his criticisms of the grounds and documents of debt in the individual claims to which he refers, dealing with them as if he were considering an appeal against a deliverance by the trustee. He seems to have gone very carefully into the matter, and he may be right in his criticisms, and in thinking that the debts to which he refers are not satisfactorily established, but I think there is no such question here raised under the 86th clause of the Act. The clause is certainly not satisfactorily expressed. The language runs thus:-"The judicial factor, the trustee, and commissioners shall be amenable to the Lord Ordinary and to the Sheriff although resident beyond the territory of the Sheriff, at the instance of any party interested, to account for their intromissions and management, by petition served on them." I repeat what I think your Lordship has expressed in the case of Henderson v. M·Lintock when I say that cases may occur, and may readily be conceived, in which the application of the clause may be useful, but I am very clearly of opinion that the clause was not designed to the end of entitling creditors or anyone else to have an accounting with the trustee with respect to his dealings as trustee with individual claims which he has admitted. These dealings of his, and his deliverance on them, are the subject-matter of other regulations in the statute. He is required to consider all the claims and vouchers, and after investigation he is to pronounce his deliverance on each, and there are very careful provisions in the statute for review of such deliverances at the instance of any person interested. In this clause, whatever it may be understood to mean-and I repeat it may be very useful in certain circumstances-it was not, I think, intended to supersede or to afford an alternative course of procedure for the procedure so elaborately provided for in these other clausesI mean the trustee's investigation of and adjudication on the claims raised by the creditors before him. But this action in its conception is of that character a calling of the trustee to account for his disposal of the individual claims of the creditors in the estate, and produce his grounds for his decision, so that the Sheriff may judge whether he has disposed of them satisfactorily; and if that were an allowable view, then, as Lord Rutherfurd Clark pointed out, it would not be excluded by the deliverance having been affirmed by the Sheriff or this Court. Affirming it might make the case hopeless, unless there was a case of res noviter made out, but the competency would not be affected because the trustee could be called upon to account for his intromissions. Hopeless confusion would result from such a view being taken. The trustee might be called upon to defend his deliverances at any time. Therefore, assuming that the Sheriff is right in holding that the trustee has not produced vouchers to establish all the debts, I am of opinion that he cannot now be required to do so, and ought not to have been called upon to do so. He has well intromitted to the extent of giving a regular deliverance, prima facie sufficient, and if there is ground of complaint which might have been established, to the effect that the vouchers were insufficient, it cannot be done in this process. Mr Pearson stated very rightly that the trustee had to investigate the claims, and require explanations from the persons making them, and to adjudicate on them, but this action proceeds on the view (which has been adopted by the Sheriff) that here the trustee is to give the explanations, and produce evidence to the pursuer here to justify what he did in respect to the creditors. That is a view of the statute which in my view is untenable and erroneous. I should have great sympathy with a man who had been wronged bringing forward any case of misconduct against the trustee, however small the matter might be, but there is none such brought forward in this case. It is an ill-conditioned proceeding, and no good ground of complaint has been prima facie stated. There |